Citation Nr: 18158086 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 13-15 105 DATE: December 18, 2018 ORDER Entitlement to service connection for coronary artery disease is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to compensation benefits under 38 C.F.R. 1151 for coronary artery disease is remanded. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran’s coronary artery disease had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. 2. The evidence is sufficient to show that the Veteran’s service-connected disabilities make him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from March 1988 to January 1990. 1. Entitlement to service connection for coronary artery disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic heart disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence shows the Veteran has a current diagnosis of coronary artery disease (CAD). The issue that remains disputed is whether the Veteran’s CAD had its onset in service, manifested to a compensable degree within one year of separation or is otherwise related to service. The preponderance of the evidence is against the claim. The Veteran’s service treatment records are silent for complaints of or treatment for a heart disease. The Veteran’s post-service VA records from 1996 and 1997 are silent for a heart diagnosis. The Veteran’s VA treatment records indicate the Veteran reported that he had several family members with a history of heart disease that have passed away in their 40s. The Veteran’s private treatment indicate that he was diagnosed with CAD in 2005. The Veteran was afforded a VA heart examination in August 2017. The examiner opined that the Veteran’s heart condition was less likely related to service. The examiner reasoned that the Veteran’s private treatment records show he had his second myocardial infarction in 2015 long after he left service due to coronary artery disease with verified multi vessel occlusion and his history of smoking. The Veteran had a percutaneous coronary intervention in 2006, a left heart catheterization in 2014 and a right coronary artery thrombectomy in 2005 after his first myocardial infarction. The examiner noted that the Veteran did not have any cardiac related records in service. The examiner further noted that these events occurred long after the Veteran left service and the records do not document any relationship between his condition and service. The Board finds the August 2017 VA examination and opinion probative to the question at hand. The examiner considered an accurate history, to include the Veteran’s contentions regarding the onset of her gastrointestinal symptoms. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the Veteran’s CAD did not have its onset in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s current CAD is related to service requires medical expertise to determine. The Board has also considered whether the service connection is warranted on a presumptive basis. However, the evidence does not show – and the Veteran does not assert – that his CAD manifested to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.307, 3.309. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s CAD is not related to service. Accordingly, entitlement to service connection for CAD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connection for depressive disorder evaluated as 70 percent disabling and vascular headaches, evaluated as 50 percent disabling. The Veteran’s combined rating is 90 percent. Thus, he meets the schedular requirements for TDIU. In addition, the preponderance of the evidence shows that the Veteran’s service-connected disabilities make him unable to secure and follow a substantially gainful occupation. A November 2010 letter from the Veteran’s former employer, Mercury Insurance Group, indicates the Veteran was approved for extended leave due to his headaches. In a January 2011 correspondence, the Veteran reported that his headache pain is so great at times he is bedridden. He reported experiencing nausea, vomiting, diarrhea, and insomnia. He reported his symptoms are incapacitating. He reported that his headaches affect his work and he falls behind when he is out sick on leave for his job. He reported not a day goes by when he does not experience headaches. His average headache is 6.5 to 7 severity out of 10. A May 2012 email correspondence indicates that in 2011 the Veteran used 411.5 hours of leave, 168 hours of inactive status, and 56 hours of medical accommodation. From January 1, 2012 to May 2012 he used 258 hours of leave. In an April 2014 mental health disability benefits questionnaire, Dr. H.G. indicated the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and or mood due to his depressive disorder. Dr. H.G. further indicated that the Veteran would miss 3 or more days per month due to his mental health condition. In a May 2015 and November 2018 opinions, vocational consultant Dr. S.G.B. indicated that based on a review of the medical evidence, the Veteran has emotional and physical conditions which interact in terms of severity. Dr. S.G.B. indicated that the Veteran’s major area of limitations appear to be mental and physical activity involved in sustaining work. She noted that the Navy found the Veteran unfit for duty due to his headaches in 1989. Dr. S.G.B. concluded that the Veteran is permanently and totally precluded from performing work at a substantially gainful level due to his service-connected depression and headaches. August 2017 VA examination indicates that when experiencing headaches, the Veteran is limited to sit and work on a computer due to lighting and is unable to think clearly. The Veteran experiences ringing inside his head during headaches and his driving is limited. The examiner further concluded that the Veteran is not functionally impaired when he is not experiencing a headache and can perform physical and sedentary employment. An August 2017 VA psychological evaluation indicates the Veteran had occupational and social impairment with reduced reliability and productivity due to his depressive disorder. The examiner noted that the objective findings on the examination support the Veteran’s contention that functional impairment is because of his mental disorder. The examiner noted the Veteran had difficulty relating to others and prefers to spend all his time alone. He would have difficulty dealing with pees, supervisors, and the public in a reasonable manner. The examiner also noted that the Veteran loses interest and motivation easily and therefore has difficult setting good persistence over an 8-hour day and a 40-hour work week. The examiner further noted that the Veteran becomes easily irritated and angered and would require specialized supervision in to maintain a harmonious and peaceful work environment. In a September 2018 addendum vocational opinion, Dr. H.H. opined that the Veteran’s headache condition causes and permanently aggravates his depressive disorder and based on his symptomatology, and statements from family the Veteran is unable to maintain substantially gainful employment. In sum, the preponderance of the evidence shows the severity and frequency of the Veteran’s headaches coupled with his severe mental health symptoms make him unable to secure and follow a substantially gainful occupation. TDIU is granted. REASONS FOR REMAND 3. Entitlement to compensation benefits under 38 C.F.R. 1151 for coronary artery disease is remanded. In a September 2013 correspondence, the Veteran asserted that after his first heart attack a VA physician took him off Imitrex and Maxalt. He reported that in 2005 he was told by a VA pharmacy that Maxalt and Imitrex are not preventative medicines and that the amount of drugs he was taking was incorrect. He further asserts that those medicines are known to cause blood clots. In addition, VA treatment records indicate that in 2014 the Veteran had a myocardial infarction on the same day he was treated by a VA medical center for his headaches via Botox injection. The evidence also indicates that in 2011 he had a myocardial infarction that day after receiving a Botox injection at a VA medical center. Thus, on remand, a medical opinion is necessary to determine if the Veteran suffered an additional disability caused by carelessness, negligence, lack of proper skill, or error in judgment on VA’s part in furnishing the care, treatment, or examination. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate medical expert for an opinion regarding the following: (a) Did the Veteran suffer from additional disability due to the prescriptions Imitrex and Maxalt or due to Botox injections? (b) If there was additional disability, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In rendering this opinion, the examiner should address whether it is at least as likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health-care provider in treating the Veteran's symptoms and whether it is at least as likely as not that the additional disability was an event that was not reasonably foreseeable. In other words, whether the development of the residual disability was an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. (Continued on the next page)   2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel